Allahabad High Court
C/M Ganga Deen Ram Kumar Inter College vs D.I.O.S. And Ors. on 17 March, 2015
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
AFR
Court No. - 26
WRIT - A No. - 8265 of 1993
Petitioner :- C/M Ganga Deen Ram Kumar Inter College
Respondent :- D.I.O.S. And Ors.
Counsel for Petitioner :- B.N. Upadhaya,D.S.M. Tripathi,H. N.
Shukla,S.D. Ojha, S.N.Shukla, Smt.Bimla
Tripathi, V.C. Dixit
Counsel for Respondent :- S.C.,H.R.Misra,K.K. Tewari,
P.N.Tripathi, R.R.Shukla, Santosh Kumar
Pandey
Connected with
WRIT - A No. - 55449 of 2004
Petitioner :- C/M Ganga Deen Ram Kumar Inter College Thru' Its
Manager
Respondent :- State Of U.P. Thru' Secy Education (Madhyamik) and
Others
Counsel for Petitioner :- U.S. Mishra,S D Ojha
Counsel for Respondent :- C.S.C., P.N. Triphathi
Hon'ble Manoj Kumar Gupta,J.
1. The relief claimed in both these writ petitions is for quashing of the order dated 27/29.11.1992 passed by the District Inspector of Schools, Jaunpur, whereby the dispute relating to legality and validity of appointment of Ashok Kumar Dwivedi (respondent no.2 in writ petition no. 8265 of 1993 and respondent no.3 in writ petition no. 55449 of 2004; hereinafter referred to as the ''private respondent' ) was decided, holding his appointment as Assistant Clerk in the institution to be valid and for mandamus restraining the State-respondents from paying salary to the private respondent and declare his appointment as null and void.
2. The case has a chequered history. The private respondent was appointed as Assistant Clerk on 30.12.1986 in Ganga Deen Ram Kumar Inter College, Ramgarh, Barwan, Jaunpur (for short referred to as ''the Institution'), a recognised institution under the provision of U.P. Intermediate Education Act, 1921. It is receiving grant-in-aid from the State Government and the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 is applicable to it. The District Inspector of Schools vide order dated 3.6.1987 granted approval to the said appointment.
3. Soon thereafter, Sri Ram Nihore Chaturvedi, President of the then Committee of Management made a complaint dated 2.7.1987 to the District Inspector of Schools, Jaunpur alleging gross irregularities in appointment of the private respondent as Assistant Clerk. It was alleged that Sri Laxmi Narayan Dwivedi, father of the private respondent being the Principal of the Institution, the appointment of the private respondent was invalid; that there was no post in existence against which any appointment could have been made; all the papers were fraudulently prepared by the Principal, Sri Laxmi Narayan Dwivedi in collusion with Sri Arjun Mishra, the then Manager; and approval was obtained by playing fraud on the authorities.
4. Taking cognizance of the complaint, the District Inspector of Schools vide its letter dated 8.2.1988 called upon the Manager of the Institution to clarify whether the private respondent is son of the Principal and in case the private respondent is son of the Principal, his appointment be cancelled, failing which the entire responsibility will be that of the management.
5. It seems that the Manager in order to avoid any adverse order being passed by the authorities, himself proceeded to pass an order dated 12.2.1988, terminating the services of the private respondent. The aforesaid order was subjected to challenge by the private respondent before this Hon'ble Court by way of writ petition no.3135 of 1988, which was allowed by judgement dated 25.2.1992 on the ground that the termination was in breach of principles of natural justice. It was held that the District Inspector of Schools was seized of the enquiry in relation to the complaint made by the President, therefore liberty was granted to the District Inspector of Schools to complete the enquiry by following the principles of natural justice and take decision in accordance with law, within three months.
6. Pursuant to the directions given by judgement dated 25.2.1992 in writ petition no. 3135 of 1988, the District Inspector of Schools, Jaunpur vide impugned order dated 27/29.11.1992 held the appointment of the private respondent as Assistant Clerk in the Institution to be valid. Aggrieved by the said order, the Committee of Management of the Institution, through its Manager Sri Virendra Kumar Pandey, purportedly filed writ petition no. 8265 of 1993. The writ petition was allowed by judgement dated 5.2.2004 holding that on the date the private respondent was appointed on the post of Assistant Clerk in the Institution, there was no vacancy in existence, as on the post in question, one Kripa Shankar Pathak was found to be working. It was held that Sri Laxmi Narayan Dwivedi, father of the private respondent was the Principal of the Institution and without following the procedure prescribed for appointment on the post of Assistant Clerk, the private respondent was appointed and which was got approved from the District Inspector of Schools by manipulation. Accordingly, appointment of the private respondent was declared void ab initio and the respondents were directed not to permit him to work in the college nor he would be paid the salary.
7. After the writ petition was allowed, two separate applications for recall of the judgement dated 5.2.2004 were filed; one of these was filed by Sri Virendra Kumar Pandey, the manager through whom the writ petition was purportedly filed. It was alleged that he never instructed any one to file writ petition on behalf of the management challenging the impugned order; that Sri D. S. M. Tripathi and Sri V. C. Dixit had been his counsel in several other petitions pertaining to the management dispute and Sri D.S.M. Tripathi advocate obtained his signature on the blank papers for filing three special appeals and it is apprehended that those papers were misused by him in filing the instant writ petition. The application was opposed by filing a counter affidavit by Sri D.S. M. Tripathi claiming himself to be the present Manager of the Committee of Management of the Institution. The allegations that blank signed papers were utilized or that he had misused his position as an advocate were denied. It is stated that Sri Virendra Kumar Pandey was not elected in the elections dated 21.6.1993, thereafter, he colluded with the private respondent and his father and had filed the recall application with false and baseless allegations. The other recall application was filed by private respondent, on the allegation that the order is exparte against him.
8. This Court vide order dated 8.11.2004 recalled the order dated 5.2.2004 deciding the writ petition, on the application filed by private respondent holding that on the date the matter was heard, name of his counsel was not correctly printed in the cause list. It seems that in view of the recall application filed by private respondent being allowed, no orders were passed on the other application filed by Sri Virendra Kumar Pandey.
9. The record reflects that in view of the controversy raised by Sri Virendra Kumar Pandey regarding filing of the writ petition no. 8265 of 1993, the then manager of the committee of management of the Institution Sri D.S. M. Tripathi filed writ petition no.55449 of 2004 on behalf of Committee of Management challenging the same impugned order dated 27/29.11.1992. It is mentioned therein that in view of peculiar facts and situation arising out of the filing of recall application by Sri Virendra Kumar Pandey, disowning filing of the earlier writ petition no. 8265 of 1993, the present writ petition is being filed by way of abundant caution.
10. Vide order dated 23.12.2004, writ petition was directed to be listed with the record of earlier writ petition no. 8265 of 1992; this is how, both the writ petitions got connected and were heard together, with consent of learned counsel for the parties, as per the Rules of the Court.
11. The District Inspector of Schools, in the impugned judgement dated 27/29.11.1992 has recorded the following findings :-
(a) The private respondent was appointed as Assistant Clerk against the vacancy which came into existence consequent to appointment of Onkar Nath Mishra as Assistant Teacher in C.T. Grade; the same was approved by the District Inspector of Schools vide its letter dated 3.6.1987.
(b) Albeit, Sri Laxmi Narayan Dwivedi, father of private respondent was officiating Principal at the relevant time, he was not part of the selection committee.
(c) The committee of management vide resolution dated 8.10.1988, conferred permanent status to the appointment of the private respondent since 1.4.1988.
(d) The post of Head Clerk and Assistant Clerk in the Institution were of the date prior to the date of enforcement of Payment of Salaries Act and thus, no formal sanction for these post was required; all the posts are deemed to have been sanctioned.
(e) Uncertified copy of the alleged appointment letter dated 18.11.1971 with regard to appointment of Kripa Shankar Pathak as Assistant Clerk is a forged and a manipulated document. He was actually appointed on 19.8.1971 under signatures of the then Manager and thus, it cannot be said that the post which became vacant consequent to appointment of Onkar Nath Mishra as Assistant Teacher in C.T. Grade was occupied by Sri Pathak since before appointment of the private respondent.
12. Sri Gajendra Pratap Singh, learned senior advocate appearing on behalf of the petitioner in both the writ petitions at the very outset stated that the issue regarding non-existence of vacancy against which the private respondent was appointed is not being pressed and he is confining his submissions to the admitted factual position viz. appointment of the private respondent as Assistant Clerk in the Institution, while his father Sri Laxmi Narayan Dwivedi was officiating Principal/Principal, which according to him, is contrary to Ch. III, Regulation 4 read with Regulation 100 and thus, the impugned order of the District Inspector of Schools cannot be sustained in law. Elaborating his argument, he submitted that under the Regulations, there is prohibition for appointment of a person on class III post in case his father is Principal of the Institution. Consequently, the appointment of the private respondent is contrary to the statutory provisions and thus, nullity in the eyes of law. It was further urged that father of the private respondent, abusing his position as Principal of the Institution, succeeded in obtaining approval to the appointment of his son, by suppressing his relationship from coming to the knowledge of the authorities. However, when complaint was made by Sri Ram Nihore Chaturvedi, the President of the committee of management vide letter dated 2.7.1987 that the private respondent is related to the Principal of the Institution being his son and thus his appointment is nullity, the District Inspector of Schools vide letter dated 8.2.1988 called upon the then Manager to submit explanation in this regard and in case the complaint is correct then his service should be terminated forthwith. The Manager though gave misleading reply vide letter dated 12.2.1988, being aware of the illegality in the appointment of the private respondent, by order of the same date, proceeded to cancel his appointment by a cryptic order, in an attempt to help the private respondent to get such order stayed. It is further submitted that the private respondent took full advantage of the cryptic order of termination passed by the then manager and succeeded in getting stay in writ petition no. 3135 of 1988. Ultimately, the writ petition was allowed on 25.2.1992, on the sole ground that the services of the private respondent were terminated in breach of principles of natural justice. It is thus submitted that there were repeated efforts by the Principal of the Institution in collusion with the then Manager to not only appoint the private respondent as Assistant Clerk but to perpetrate his continuance, by passing such orders as would help the private respondent.
13. It is further submitted that the action of the Principal and the then Manager in procuring the approval from the District Inspector of Schools by actively concealing the factum of relationship of the private respondent with the Principal of the Institution, is a fraud on the educational authorities and the District Inspector of Schools committed manifest error of law in ignoring the aforesaid aspects while passing the impugned order. It is contended that mere non-participation of the then Principal in the selection committee allegedly constituted, would not make any difference, as Sri Laxmi Narayan Dwivedi was appointed as adhoc Principal on 1.9.1985, his adhoc appointment was approved on 24.10.1985, he continued to work as such until he was selected as regular Principal by the Secondary Education Commission in the month of March, 1987 and came to be appointed as regular Principal since 30.3.1987.
14. Sri G. K. Singh, senior advocate who appeared on behalf of the private respondent did not dispute that provision of Ch. III Regulation 4 and 100 would be attracted even though his father Sri Laxmi Narain Dwivedi was not the regular principal, but was working as officiating/adhoc principal. He also conceded that mere non-participation of the father of the private respondent in the proceedings of the selection committee will not save the appointment of the private respondent from the rigour of Ch.III, Regulation 4 read with Regulation 100. He, however, urged that the private respondent has been working as Assistant Clerk in the Institution since the date of his initial appointment in the year 1986 on the basis of approval granted on 3.6.1987. The order of the District Inspector Schools dated 27/29.11.1992, holding the appointment to be valid came to be challenged for the first time by writ petition filed in the year 2004, as such, it is not a fit case for interference by this Court in exercise of its power under Article 226 of the Constitution. It is submitted that the earlier writ petition no. 8265 of 1993 was not filed by the then Manager Sri Virendra Kumar Pandey; rather it is result of fraud on part of Sri D. S. M. Tripathi, who claims himself to be Manager of the Institution when the subsequent writ petition was filed. It is pointed out that Sri Virendra Kumar Pandey has already filed an application dated 18.11.2014 for dismissing writ petition no. 8265 of 1993 as not maintainable. Learned standing counsel appearing on behalf of the State-respondents supported the contention made by Sri G.K. Singh on behalf of the private respondent.
15. Thus, from the submissions made by learned counsel for the parties the controversy had got narrowed down. It is admitted to the parties that the private respondent was appointed as Assistant Clerk in the Institution against the vacancy caused by appointment of Onkar Nath Gupta as Assistant Teacher in C.T. Grade on 18.9.1972 and prior to the appointment of the petitioner, the said post was vacant. It is further admitted to them that the appointment of the private respondent on 30.12.1986 on the vacancy so caused, was contrary to Ch. III Regulation 4 read with Regulation 100 as at the relevant time, father of the private respondent was working as officiating/adhoc Principal of the Institution. The limited question which fell for consideration before this Court is whether in view of the application filed by Sri Virendra Kumar Pandey, disowning filing of writ petition no. 8265 of 1993, could it be said that challenge made to the impugned order was for the first time in the year 2004 by way of writ petition no. 55449 of 2004 and whether in such circumstances, should this Court interfere with the appointment made in the year 1986, particularly when the private respondent is stated to be on the verge of retirement.
16. Before examining the submissions made by Sri G.K. Singh, senior advocate on behalf of the private respondent, it would be apposite to quickly refer to some of the decided cases regarding impact on an appointment made in breach of Ch.III Regulation 4 and other cognate provisions.
17. A Division Bench of our Court in Special Appeal no. 1062 of 2014 Azizullah Khan vs. State of U.P and 4 others and connected matter decided on 24.11.2014 held that "the object and purpose of Ch. III regulation 4 is to ensure that a member of the Committee of Management is not able to exercise undue influence by his presence as a member of the Committee of Management. The bar is to prevent a member of the Committee of management influencing the Selection Committee in the appointment of his relative on the post of Principal. To hold that the regulation would not be attracted so long as the member of the Committee of Management has resigned prior to the date of actual appointment, would defeat its purpose. A purposive interpretation would have to be made of Regulation 4 when it refers to "appointment". Once the selection process has begun, a relative of the Committee of Management falling in one of the prohibited relationships would not be eligible for appointment."
18. The Apex Court interpreting a cognate provision under the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Services of Teachers) Rules, 1978 held that appointment of son of the manager as Head Master in a recognised junior high school is in violation of Rule 6 and such an appointment is a nullity in the eyes of law. It was held that mere fact that the manager had gone on leave on medical ground at the time when the selection was made would not cure the illegality. Their Lordship of the Supreme Court further held that infact such an act was intended to defeat the statutory provision and was a fraud on the administration; there cannot be any equity in favour of such incumbent. Relevant observation made in this regard are as under :-
"11. As basic foundational fact stands admitted before us, we are of the opinion that the judgment of the High Court cannot be sustained. The appointment of respondent no.1 being contrary to the mandatory provisions as contained in Rule 6 of the Rules, the same was a nullity. An appointment which was per se illegal could not have been directed to be legalised only because the appellant did not file its counter affidavit. It did not admit the respondent's claim. The question involved in the writ petition was a legal question. As indicated hereinabove, the foundation facts are undisputed.
12. ................Only because such a question was not allegedly raised before the High Court, this Court could not shut its eyes to the legal position. Yet again only because an illegality has been committed, this Court would not allow its perpetration. Respondent's father was on leave for a temporary period. He thereby did not cease to be the Manager of the school. It is apparent that he went on leave only for defeating the statutory provisions. Such an act amounts to fraud on the administration.
13. We, having regard to the facts and circumstances of the case, are of the opinion that whether in law or in equity, it would be wholly improper to permit respondent no.1 to continue to act as a Headmaster."
19. It seems that in view of the aforesaid well settled legal position, counsel for the private respondent very fair conceded to the contention made on behalf of the petitioner regarding the appointment of the private respondent being in violation of Ch.III Regulation 4 and 100. However, he laid much emphasis on division bench judgement of this court in Rajindra Prasad Srivastava vs. District Inspector of Schools and others reported in 1994 (3) ESC 117 wherein, this court refused to interfere with the appointment made in breach of Ch. III Regulation 4 on the ground of considerable delay in laying challenge to the same. It was observed as under:-
"3. It is true that the appointment of the appellant was in violation of Regulation 4 of Chapter III and was as such, illegal, but he has worked in the institution from 1971 to 1978, when his service was terminated. But this order of termination was stayed by this Court, on account of which he continued to work upto the time when his writ petition was dismissed in August, 1991. It will be highly unfair to remove a person from service after about 20 years, on the ground that his initial appointment was illegal. Division Bench of this Court in Committee of Management v. District Inspector of Schools, (Supra) has held that it will be unfair and unjust to un-settle the career of an employee who has worked for about eight years. In Smt. Rani Srivastava v. State of U.P. (Supra) another Division bench did not permit the appointment of head mistress to be put to an end after five years, even though there was infirmity in making her appointment. Supreme Court in Dr. M.S. Mudhol v. S.D. Halegkar (Supra) has observed that it would be undesirable to disturb a Principal after 12 years on the ground that he was not eligible at the time of his appointment, because it would be inequitous to make him suffer after such a long time."
20. Before dealing with the said judgment, I consider it appropriate to refer to certain decisions of the Apex Court on the subject viz. the effect of an appointment being found to be illegal and whether court can refuse to interfere with such appointment on ground delay, sympathy or equity.
21. The Apex Court in the case of Ashok Kumar Sonkar vs. Union of India and others (2007) 4 SCC 54 explained the difference between illegal and irregular appointment and held that in case of illegal appointment, it is a nullity and equity will have no role. In that case, the incumbent selected for the post of lecturer, was not having the requisite qualification on last date of filing of application, although, he acquired that qualification before the date of interview. It was held as under :-
"34. It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eyes of law, which renders the appointment to be a nullity."
22. Their Lordships of the Supreme Court after revisiting the law on the subject, repelled the contention advanced on behalf of the incumbent that a sympathetic view should be taken, as he has been working since long. It is held as under :-
33. In Maruti Udyog Ltd. v. Ram Lal & Others. [(2005) 2 SCC 638], a Division Bench of this Court, wherein one of us was a member, noticing some decisions, observed :
"44. While construing a statute, sympathy has no role to play. This Court cannot interpret the provisions of the said Act ignoring the binding decisions of the Constitution Bench of this Court only by way of sympathy to the workmen concerned.
45. In A. Umarani v. Registrar, Coop. Societies this Court rejected a similar contention upon noticing the following judgments: (SCC pp. 131-32, paras 68-70)
68. In a case of this nature this Court should not even exercise its jurisdiction under Article 142 of the Constitution of India on misplaced sympathy.
69. In Teri Oat Estates (P) Ltd. v. U.T., Chandigarh it is stated: (SCC p. 144, paras 36-37)
36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision. 37. As early as in 1911, Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. observed: (All ER p. 123 E) We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will on the wisp to take as a guide in the search for legal principles.
70. Yet again, recently in Ramakrishna Kamat v. State of Karnataka this Court rejected a similar plea for regularisation of services stating:(SCC pp. 377-78, para 7) We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularisation and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zila Parishads in view of the government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned Single Judge and looking to the very directions given, a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment."
23. In Binod Kumar Gupta and others vs. Ram Ashray Mahoto and others 2005 (4) SCC 209, the Apex Court held that where the selection stands vitiated, there cannot be any equity in favour of the incumbent nor he can be permitted to continue merely because he had worked for last 15 years. It was observed as under :-
"However, having regard to the facts of the case, as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to which every judge and anyone connected with the judicial system are required to be function. If we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment."
24. The same view has been taken by Their Lordship of the Supreme Court in the case of Dr. M.S. Patil vs. Gulbarga University and others 2010 (4) ESC 565 by observing as under:-
"11. But at this stage once again a strong appeal is made to let the appellant continue on the post where he has already worked for over 17 years. Mr. Patil, learned senior counsel, appearing for the appellant, submitted that throwing him out after more than 17 years would be very hard and unfair to him since now he cannot even go back to the college where he worked as lecturer and from where he had resigned to join to this post.
12. We are unimpressed. In service law there is no place for the concepts of adverse possession or holding over. Helped by some University authorities and the gratuitous circumstances of the interim orders passed by the Court and the delay in final disposal of the mater, the appellant has been occupying the post, for all these years that lawfully belonged to someone else. The equitable considerations are, thus, actually against him rather than in his favour. ...................."
25. In a more recent judgement in case of State of Bihar Vs. Chandra Pathak 2014 (1) ESC 614 (SC), the Apex Court repelled the contention made on behalf of the incumbent not to interfere with his appointment as he had worked for long , after it was found that the same has been done without proper advertisement.
26. Similar view has been taken in case of Sheshmani Shukla vs. District Inspector of Schools, Deoria JT 2009 (10) SC 309 by holding as under :-
"14. Both the learned Single Judge as also the Division Bench have found that the institution has not complied with the provisions of the 1981 Act as amended as also para 5 of the 1981 order. If the appointment of the appellant was not valid, the question of granting any approval thereto did not arise. Action, on the part of the Committee of the Management to hold selection, being not consistent with Para 5 of the Order has rightly been held to be wholly unsustainable. It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009 (8) SCALE 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {[See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [(2008) 1 SCC 456]}.
27. In Naresh Chandra and others vs. State of Jharkhand and others 2008 (1) SCC 798, the Apex Court upheld the action of the competent authority in dispensing with service of the incumbent even after 14 years of appointment, having found the same to be in violation of the service rules.
28. The preponderance of the judicial opinion now is that in case the appointment is not merely irregular but illegal, then it is void and non est in the eyes of law and such appointment cannot be legalised merely because the incumbent had continued to work somehow or the other for considerable period. That will amount to giving premium to something which is inherently illegal, thus, perpetrating and condoning illegality.
29. Now reverting to the division bench judgement in the case of Rajinder Prasad Srivastava (supra) it may be noted that therein the incumbent had worked from 1971 to 1978 when his services were terminated. The court was thus of the view that there was gross delay in dispensing with his services. However, in the instant case, it is noticeable that soon after approval was granted to the appointment of the private respondent on 3.6.1987, a complaint came to be made by Sri Ram Nihore Chaturvedi and in reference whereof, the District Inspector of Schools enquired from the management as to whether the private respondent is the son of the principal or not and in case he is the son, his services should be terminated. Acting on the letter of the District Inspector of Schools, the Management terminated the services of the private respondent by order dated 12.2.1988. Though the order was set aside in writ petition filed by the private respondent on the ground that such order was in breach of the principles of natural justice but it is evident that there was no delay in dispensing with the services of the private respondent. As such, I am of the opinion that in the facts of the instant case, the aforesaid judgement would not be applicable.
30. The other factor which weighed with the court in the case of Rajinder Prasad Srivastava (supra) for refusing to interfere, was that the incumbent had worked for considerable period on the basis of stay order granted by the court. It is now well settled by a series of judicial pronouncements that continuance of a person on basis of interim order will not legalise his appointment, if it is illegal, dehors the mandatory provisions. In the instant case, there was statutory interdict in appointment of the private respondent, being the son of the then Principal. The District Inspector of Schools soon after coming to know of the illegality in the appointment of the private respondent, vide its letter dated 8.2.1988 called upon the then manager to terminate the services of the private respondent. Thus, in the facts of the instant case, I am of the considered view that subsequent passing of an illegal order by the District Inspector of Schools, impugned in the writ petitions, will not legalise his appointment.
31. It is further noticeable that Rajinder Prasad Srivastava (supra) places reliance on the judgement of the Apex court in the case of Dr. M.S. Mudhol and another vs. S.D. Halegkar and others 1993 (2) ESC 245. Therein, by means of a writ of quo warranto, the appointment of the principal of the private aided college was sought to be challenged on the ground that the incumbent was not qualified as he had passed M.A. in III division, while the requirement was Master degree with at least second division. It was observed by the Apex Court that despite the incumbent disclosing the qualification possessed by him before the selection committee, he was wrongly selected, the Director of Education acquiesced to his appointment, and thereafter the incumbent continued on the post for 9 years till filing of the petition therefore, the Court declined to interfere. However, in the instant case, the specific allegation is that the father of the private respondent, misusing his position as Principal of the Institution, succeeded in obtaining approval to his appointment by suppressing material facts. The District Inspector of Schools soon after he received complaint regarding illegal appointment of private respondent, sought clarification from the management and further directed it to cancel his appointment, if he is related to the Principal of the Institution. It is further noticeable that judgement by the Apex Court was confined to facts of that case and the Apex Court never intended therein to lay down any principle of universal application for the courts not to interfere in case the incumbent had worked for considerable period, as is evident from the concluding paragraphs of the said judgement, wherein, it is observed as under :-
"8. However, we must make it clear that in the present case the 2nd respondent, Director of Education had committed a clear error of law in approving the academic qualifications of the 1st respondent when he was not so qualified. As pointed out above, the interpretation placed by him and the other respondents on the requisite educational qualifications was not correct and the appointments made on the basis of such misinterpretation are liable to be quashed as being illegal. Let this be noted for future guidance."
(Emphasis supplied)
32. In view of the above, I am of the opinion that judgement in the case of Rajinder Prasad Srivastava (supra) cannot come to the rescue of the petitioner, especially when the constant view of the Apex Court is that an appointment which is illegal, in violation of the statutory rules, is void and non est in the eyes of law; it cannot be upheld merely on the ground of delay or by extending sympathy to such incumbent, as he had worked for considerable period.
33. Having held so, I still proceed to examine if there is at all any delay in challenging the impugned order, so as to dismiss the writ petitions on such ground and what should be the fate of the application dated 18.11.2014 filed by Sri Virendra Kumar Pandey for dismissing writ petition no.8265 of 1993 as not maintainable.
34. Though several allegations and counter allegations have been made by Sri Virendra Kumar Pandey and Sri D.S.M. Tripathi against each other but they are not germane to the controversy at hand and only the relevant facts are being noticed.
35. Sri Virendra Kumar Pandey, for the first time disowned having filed writ petition no. 8265 of 1993 by filing application no.160961 of 2004 for recalling the judgement dated 5.2.2004, allowing the writ petition. In para 5 of the affidavit filed in support of the said application, it was alleged as under :-
"5. That after the decision of Hon'ble Mr. Justice Bahuguna dated 2.2.1993 disposing of 3 writ petitions i.e. no. 899 of 1992, writ petition no. 37481 of 1992, writ petition no. 926 of 1992 Shri D.S. M. Tripathi took the signatures of the deponent on hundreds of blank papers for the purposes of filing 3 Special Appeals and misused the same wherever he liked."
Subsequently, in the application dated 18.11.2014 filed by Sri Virendra Kumar Pandey for dismissing the writ petition as not maintainable, it is alleged as under :-
"7. ........Sri D.S.N. Tripathi advocate obtained signature of answering deponent about 100 blank papers for filing petition and special appeal no.123 of 1993 and that was filed by Sri D.S.N. Tripathi. Not only this but during pendency of the writ petition Virendra Kumar Pandey had also given original records of the college to Sri D.S.N. Tripathi."
40. ...................From entire facts and circumstances it is very much clear that answering deponent has not filed present petition but was filed by D.S.M. Tripathi in his name fraudulently prepared on blank papers which was obtained by him during the course when he was counsel of answering deponent, thus the writ petition is not maintainable and dismissed with costs."
36. The substance of these pleas is that Sri D.S.M. Tripathi had been his counsel in three writ petitions relating to the management dispute. These writ petitions were decided by common judgement dated 2.2.1993. Sri D.S.M. Tripathi obtained signatures of Sri Virendra Kumar Pandey on hundreds of blank papers for filing special appeals but misused the same in forging election proceedings and also in filing writ petition no. 8265 of 1993 without his instructions and knowledge.
37. Sri D. S. M. Tripathi filed counter affidavit rebutting the allegations made in civil misc. application no. 160961 of 2004. He denied having used signed blank papers in preparing writ petition no.8265 of 1993 or in getting it filed through Sri U.S. Mishra and Sri S.D. Ojha advocates without instructions from Sri Virendra Kumar Pandey. It is asserted that writ petition in question was duly filed by Committee of Management through its then manager Sri Virendra Kumar Pandey. It is further stated that the complaint filed by Sri Virendra Kumar Pandey against him before the Bar Council on similar allegations was found to be baseless and was rejected.
38. It is noticeable that writ petition no. 8265 of 1993 though presented before the Court on 12.3.1993, but the affidavit in support thereof by Sri Virendra Kumar Pandey was sworn on 2.2.1993 at 10:30 A.M., which was the same day on which three writ petitions were decided by this Court and he claims to have handed over signed blank papers to Sri D.S.M. Tripathi for filing special appeals. Now, even if it is assumed that judgement in three writ petitions was delivered at 10.00 A.M. on 2.2.1993 and immediately thereafter Sri Virendra Kumar Pandey decided to file three special appeals and in connection whereof, he had supposedly delivered hundreds blank signed papers to his counsel, it was impossible to get the writ petition prepared on these papers immediately thereafter running into 65 manual typed pages so that the affidavit is sworn at 10:30 A.M. itself. Thus, it is not possible to believe the story set up in this regard by Sri Virendra Kumar Pandey.
39. It is admitted to Sri Virendra Kumar Pandey in para 6 of the affidavit filed in support of the application dated 18.11.2014 that his signatures were attested as manager in pursuance of the stay order passed in his writ petition challenging the order of the Dy. Director of Education dated 20.12.1991 and he thereafter worked as recognised manager. Thus, Sri Virendra Kumar Pandey, as defacto manager seems to have instructed his counsel to get writ petition drafted for challenging the order of the District Inspector of Schools dated 27/29.11.1992, affidavit whereof, as noted above, was sworn on 2.2.1993 at 10.30 A.M.
40. It is pertinent to notice that there was strong animus on part of Sri Virendra Kumar Pandey to file such writ petition challenging the appointment of the private respondent. It is admitted to him that the private respondent was appointed when Sri Arjun Mishra was working as manager and under his signatures. It is further admitted to Sri Virendra Kumar Pandey that he was at logger head with Sri Arjun Mishra, as he had set up a parallel election. He even challenged the attestation of signature of Sri Virendra Kumar Pandey by the District Inspector of Schools by filing writ petition no. 37481 of 1992. These events relates to the period immediately before filing of writ petition no.8265 of 1993 and thus, lend credence to the contention of Sri D.S.M. Tripathi that writ petition no.8265 of 1993 was infact filed by the management on instructions of Sri Virendra Kumar Pandey but later, when he could not be re-elected in the election held on 21.6.1993 and thereafter, he colluded with the private respondent and his father, Principal of the institution, in filing recall application and the application to dismiss the writ petition as not maintainable.
41. It is further noticeable that in writ petition no. 3135 of 1988 filed by the private respondent challenging the order terminating his services, a counter affidavit was allegedly filed by Sri Virendra Kumar Pandey, on behalf of the management, in which he took a specific plea that there was no vacancy of Assistant Clerk in the year 1986; that the private respondent is son of then principal of the college; committee of management never passed any resolution for his appointment; the so called selection and appointment of the private respondent was based on forged and fabricated documents and the approval was obtained by playing fraud (vide paragraph 14 of the counter affidavit of Sri D. S. M. Tripathi in response to the affidavit filed in support of the recall application.)
42. In reply, Sri Virendra Kumar Pandey could not deny about existence of such a counter affidavit, but in paragraph 8 of the rejoinder affidavit, he expressed ignorance about filing of such counter affidavit and went on to the extent of alleging that the counter affidavit appears to have been filed by Sri D.S.M. Tripathi by forging his signatures. No reason has been disclosed in the rejoinder affidavit as to the motive on part of Sri D.S.M. Tripathi in getting the counter affidavit filed in the said writ petition in the year 1988 by forging signatures of Sri Virendra Kumar Pandey. No such plea was raised by Sri Virendra Kumar Pandey in recall application no. 160961 of 2004 and these allegations have been made for the first time in the rejoinder affidavit. It is not disputed by Sri Virendra Kumar Pandey that he was at logger head with Arjun Mishra, Manager of the rival group and it was Sri Arjun Mishra, who had supposedly appointed the private respondent on the post of Assistant Clerk. The aforesaid background facts belies the story set up by Sri Virendra Kumar Pandey, disowning filing of writ petition no. 8265 of 1993.
43. One more aspect, which is required to be noted on a close reading of the recall application filed by Sri Virendra Kumar Pandey is that he was not sure of the stand to be taken in the recall application for disowning filing of the writ petition. On one hand, it is alleged that more than hundred blank papers were obtained by Sri D.S.M. Tripathi for filing special appeals after judgement of this Court dated 2.2.1993, and were misused in filing the writ petition. On the other hand, in paragraph 12 of the same affidavit, it is stated that "Sri D.S.M. Tripathi has misused his position as advocate. In this writ petition too in all probability, he himself or through other has tried make forged signature of the deponent." This, wavering stand creates serious doubt about credibility of the story set up by Sri Virendra Kumar Pandey.
44. It is further noticeable that Sri Virendra Kumar Pandey was not re-elected as manager in the election held in June, 1993 or thereafter. Writ petition no. 8265 of 1993 is not by Sri Virendra Kumar Pandey in his individual capacity but by the Committee of Management through its manager. In the year 2004, when recall application was filed and again in the year 2014 when application was filed for dismissing the writ petition as not maintainable, he was not the manager and thus, in my view, he was not authorised to file such applications. Recall application no. 160961 of 2004, as noted above, has already been rendered infructuous as the judgement dated 5.2.2004 was recalled on the application filed by the private respondent. The other application filed in the year 2014 for dismissing the writ petition as not maintainable is hereby rejected for the reasons narrated herein above.
45. These observations and findings are only in reference to the case set up by Sri Virendra Kumar Pandey qua filing of writ petition no. 8265 of 1993. It is clarified that the aforesaid observations do not in any manner adjudicate upon the allegations and counter allegations between the parties against each other or regarding the alleged abuse of the fiduciary relationship by Sri D.S.M. Tripathi advocate nor should be construed as expression of judicial opinion on the legality of the election set up by Sri D.S.M. Tripathi.
46. In view of the discussion made above, in my opinion, the writ petition no. 8265 of 1993 was duly filed. However, when Sri Virendra Kumar Pandey started disowning filing of the writ petition, then the management in its wisdom filed writ petition no. 55449 of 2004, which would, in the peculiar facts and circumstances of the case, be treated to be in continuance to the challenge made to the appointment of the private respondent.
47. Thus, I do not find any delay in challenging the appointment of the private respondent or the impugned order of the District Inspector of Schools dated 27/29.11.1992. Accordingly, both the writ petitions are allowed. Impugned order dated 27/29.11.1992 passed by the District Inspector of Schools is quashed. It is further held that the appointment of the private respondent was in breach of the mandatory provisions of Ch. III Regulation 4 read with Regulation 100 and thus, nullity in the eyes of law.
48. Consequently, the private respondent would not be entitled to work nor the State-respondent shall pay salary to him from the State Exchequer. However, in view of the fact that the private respondent had worked on the basis of impugned order passed in his favour by the District Inspector of Schools and was also paid salary, therefore, the State-respondent shall not be entitled to recover the salary already paid to the private respondent during this period.
49. Subject to the aforesaid direction and clarifications, both the writ petitions are allowed.
50. No order as to costs.
(Manoj Kumar Gupta, J.) Order Date :- 17/3/2015 skv